Hernandez v. Astrue
Filing
21
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 9/26/2012. (ndr, COURT STAFF) (Filed on 9/26/2012)
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
ANITA HERNANDEZ,
5
6
7
8
9
No. C 11-2692 CW
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
________________________________/
ORDER DENYING
PLAINTIFF'S MOTION
FOR SUMMARY
JUDGMENT AND
GRANTING
DEFENDANT'S CROSSMOTION FOR SUMMARY
JUDGMENT
United States District Court
For the Northern District of California
10
11
Plaintiff Anita Hernandez, now deceased and substituted by
12
Yvonne A. Poe, moves for summary judgment or, in the alternative,
13
for remand in this social security appeal on the grounds that the
14
administrative law judge (ALJ) failed to develop the record in
15
regard to her physical and mental impairments, failed to provide
16
adequate reasons for rejecting her testimony regarding the
17
severity of her symptoms, and failed to follow the regulations
18
governing evaluation of mental impairments.
19
Astrue in his capacity as Commissioner of the Social Security
20
Administration (SSA) opposes Plaintiff's motion and cross-moves
21
for summary judgment.
22
the papers filed by the parties and the relevant legal authority,
23
the Court denies Plaintiff's motion for summary judgment or for
24
remand, and grants the Commissioner's cross-motion for summary
25
judgment.
26
27
28
Defendant Michael J.
Plaintiff filed a reply.
Having considered
BACKGROUND
In August 2008, Plaintiff filed applications for disability
benefits and supplemental security income pursuant to Titles II
1
and XVI of the Social Security Act, alleging that she became
2
disabled on May 10, 2001, because of carpal tunnel syndrome and
3
arthritis.
4
November 4, 2008, upon reconsideration on February 4, 2009, and,
5
after a hearing held on March 22, 2010, by an ALJ in a decision
6
dated May 4, 2010.
7
decision of the Commissioner when the Appeals Council denied
8
review.
AR 249.
The applications were denied initially on
The ALJ's denial of benefits became the final
Plaintiff was born on February 22, 1962.
10
United States District Court
For the Northern District of California
9
ALJ decision, Plaintiff was forty-eight years old.
11
complete high school but graduated from an administrative medical
12
assistant college program.
13
relevant work as a housekeeper, retail sales clerk and assembler.
14
AR 59, 69.
At the time of the
She did not
Plaintiff had past
In her application for disability benefits and supplemental
15
security income, Plaintiff reported that carpal tunnel syndrome
16
and arthritis interfered with her ability to work as of May 10,
17
2001.
18
compensation arising from repetitive stress injury she sustained
19
in the course of her employment as an assembler.
20
Plaintiff settled her workers’ compensation claim by compromise
21
and release dated November 2, 2005.
22
AR 249.
Plaintiff also filed a claim for workers’
AR 320.
AR 314-19.
On May 10, 2001, Plaintiff was treated by Dr. Zaharoff who
23
noted that Plaintiff had been in a motor vehicle accident at the
24
age of two in which she hit the dashboard and broke her legs and
25
one arm and had had back problems ever since.
26
Dr. Zaharoff determined that Plaintiff required elbow supports and
27
that she could not reach above the shoulders and could perform
28
repetitive hand motions “frequently,” which is less restrictive
2
AR 449-50, 523-24.
1
than the categories of “occasionally” or “not at all,” but is more
2
restrictive than “no restrictions.”
3
noted that Plaintiff should not perform mandrel work or forceful
4
pinching or grasping.
5
again on May 23, 2001, and continued to limit Plaintiff to no
6
reaching above the shoulders, frequent repetitive hand motions, no
7
mandrel work and no forceful grasping.
8
diagnosed Plaintiff with carpal tunnel syndrome and cervical
9
dysfunction, also referred to as Double Crush Syndrome.
United States District Court
For the Northern District of California
10
AR 522-24.
AR 522.
Dr. Zaharoff also
Dr. Zaharoff saw Plaintiff
AR 518.
Dr. Zaharoff
AR 383,
442, 516.
11
On June 7, 2001, Dr. Vidaurri examined Plaintiff and
12
authorized moderate duty through June 29, 2001, but restricted use
13
of the left hand to perform occasional repetitive hand motions and
14
no repetitive firm grasping.
15
Vidaurri also diagnosed Plaintiff with CTS/cervical dysfunction
16
(Double Crush Syndrome) and noted that the carpal tunnel symptoms
17
were “very atypical.”
18
grip strength test showing Right: 45, 40, 35 and Left: 20, 15,
19
35.1
20
nerve conduction study revealed bilateral CTS and prohibited
21
Plaintiff from performing mandrel work, but he authorized work for
22
eight hours per day and forty hours per week.
AR 447, 514.
AR 446.
AR 514-15.
On June 8, 2001, Dr.
Dr. Vidaurri conducted a Jamar
On July 2, 2001, Dr. Zaharoff noted that a
AR 440.
Dr.
23
24
25
26
27
28
1
These test results appear to refer to readings taken from
a Jamar® dynamometer which measures hand grip strength. See
Amaral, et al., Comparison of Three Hand Dynamometers in Relation
to the Accuracy and Precision of the Measurements (June 2012),
http://www.ncbi.nlm.nih.gov/pubmed/22801514. Plaintiff does not
point to any evidence in the record attributing particular
significance to her Jamar test results.
3
1
Zaharoff also noted that Plaintiff missed her scheduled physical
2
therapy on June 21, 2001, and was unable to cancel her
3
appointment.
AR 439.
4
On August 24, 2001, Dr. Coomber examined Plaintiff to prepare
5
disability paperwork and noted a trace of popping as she moved her
6
left shoulder.
7
measure Plaintiff’s range of motion, he observed that it was not
8
grossly, severely limited.
9
AR 357-59.
Although Dr. Coomber did not formally
AR 358.
On October 18, 2001, Dr. Gunderson conducted an orthopaedic
United States District Court
For the Northern District of California
10
evaluation of Plaintiff, noting that the Jamar grip strength test
11
showed Right: 50, 50, 60 and Left: 40, 35, 40.
12
Gunderson reviewed Plaintiff’s medical records and prepared a
13
report to address the issue of causation for the workers’
14
compensation claims examiner.
15
recommended that bilateral electrodiagnostic studies be carried
16
out to rule out carpal tunnel syndrome, after which he would
17
submit a supplemental report.
AR 435-38.
AR 437.
Dr.
Dr. Gunderson
AR 437.
18
On January 9, 2002, Dr. Kivett examined Plaintiff and noted
19
that a grip strength test showed Right: 15, 16, 22 and Left: 26,
20
31, 26.
21
Plaintiff’s right volar forearm and two scars on the dorsal hand,
22
a four-centimeter scar on the right dorsal mid-forearm, and a one-
23
centimeter burn on the right dorsal first web space, “reported as
24
asensate.”
25
of bilateral carpal tunnel syndrome with positive physical
26
findings without improvement since being off work; bilateral
AR 380.
He also noted two two-centimeter scars on
AR 380.
He diagnosed Plaintiff with dynamic symptoms
27
28
4
1
Wartenberg’s2 by history; and repetitive stress injury, bilateral
2
upper extremities.
3
was subjected to repetitive stress injury for about three years
4
which caused the bilateral carpal tunnel syndrome.
5
Kivett noted that, although Plaintiff’s obesity may have been a
6
mitigating factor, the fact that her symptoms had not improved
7
since she stopped working and the evidence of a burn in asensate
8
tissue supported a conclusion of profound changes.
9
AR 381.
Dr. Kivett concluded that Plaintiff
AR 381.
Dr.
AR 381.
On June 27, 2002, Dr. Satow conducted an upper extremity
United States District Court
For the Northern District of California
10
electrodiagnostic study on Plaintiff which revealed evidence of
11
bilateral carpal tunnel syndrome; he categorized the right side as
12
severe and the left side as moderate to moderately severe.
13
392.
14
AR
On August 8, 2002, Dr. Kivett opined that Plaintiff’s pain,
15
numbness and tingling prevented her from returning to her regular
16
and customary work until September 15, 2002.
17
emergency department report indicates that on September 12, 2002,
18
Plaintiff was treated for a possibly infected abdominal surgical
19
wound following a cholecystectomy (gallbladder removal) about
20
three weeks earlier.
21
AR 410.
An
AR 341.
On October 31, 2002, Dr. Newton conducted further
22
electrophysiologic studies of Plaintiff’s upper extremities and
23
found the results compatible with bilateral carpal tunnel
24
syndrome.
25
Gunderson prepared a supplemental report recommending that
AR 593.
Based on the results of these studies, Dr.
26
2
27
28
Plaintiff represents that Wartenberg’s syndrome is
entrapment of the sensory branch of the radial nerve described by
Wartenberg in 1932. Pl.’s Mot. at 5 n.2.
5
1
Plaintiff see a surgeon who specializes in carpal tunnel syndrome.
2
AR 591.
3
explained that Plaintiff “needs a right carpal tunnel release on
4
the right and should be permanent and stationary approximately
5
three months afterward.
6
also needs surgery and again a three month period afterward would
7
make her permanent and stationary.”
8
indicated that until Plaintiff had the surgery, he would keep her
9
in night splints.
In a November 25, 2002, report, Dr. Gunderson further
It may then be decided that the left side
AR 588.
AR 588.
Dr. Gunderson
Dr. Gunderson further opined that,
United States District Court
For the Northern District of California
10
since January 9, 2002, Plaintiff “could have been on modified duty
11
not being engaged in any repetitious hand work.”
12
AR 588.
On January 15, 2003, Plaintiff received authorization for
13
carpal tunnel release surgery.
14
indicate that Plaintiff was scheduled for the surgery on February
15
14, 2003, but the operation was cancelled because Plaintiff did
16
not show up for her scheduled pre-operative visit.
17
Although Plaintiff could not recall why she missed the visit and
18
did not have the surgery, she clarified at the hearing that it was
19
not due to her incarceration which occurred later in 2003.
20
40.
AR 384.
Dr. Kivett’s records
AR 394.
AR 39-
21
Plaintiff’s prison health records, submitted to the Appeals
22
Council after the ALJ’s decision, indicate that on June 2, 2003,
23
she was excluded from the developmental disability program on the
24
ground that she received a passing score on a cognitive test.
25
630.
26
indicate that from October 6, 2003, to May 21, 2004, Plaintiff
27
reported symptoms of feeling depressed and difficulty sleeping.
28
AR 625-29.
AR
The prison’s mental health interdisciplinary progress notes
A progress note dated March 9, 2005, indicates that
6
1
Plaintiff failed to arrive for two psychoeducational group
2
sessions and was referred to her case manager.
3
AR 624.
On May 11, 2005, Dr. Gordon saw Plaintiff for an orthopaedic
4
hand surgery evaluation and noted that Plaintiff had not had any
5
treatment since February 2003.
6
negative results for Tinel’s sign and Phalen’s sign, both of which
7
are tests for carpal tunnel syndrome.
8
readings from Plaintiff’s grip strength test showed Right: 40, 35,
9
25 and Left: 30, 25, 25.
AR 596.
AR 603.
Dr. Gordon further noted
AR 597.
Dynamometer
Dr. Gordon opined that, based
United States District Court
For the Northern District of California
10
on the overall clinical presentation, Plaintiff did not have
11
severe ongoing carpal tunnel syndrome necessitating surgery, but
12
noted, “Considering that she has had two positive
13
electrodiagnostic studies, if there is indeed a deterioration of
14
the clinical condition, an award for future medical treatment to
15
have a carpal tunnel release done in the future would be
16
reasonable.”
17
conservative supportive measures, anti-inflammatories, analgesics,
18
splinting, advice regarding hand use, a course of therapy up to
19
twelve visits a year over the next two years, and other supportive
20
conservative care.
21
activities that require lifting more than ten pounds on a
22
repetitive basis or fifteen pounds intermittently.
23
allowed Plaintiff to do repetitive gripping or manipulative
24
activities for no more than half an hour at a time, up to three
25
hours interspersed throughout an eight-hour work shift.
AR 601.
Dr. Gordon suggested further treatment with
AR 601.
Dr. Gordon restricted Plaintiff from
AR 601.
He
AR 601.
26
On October 26, 2006, Dr. Stanton examined Plaintiff and found
27
numbness down the arm and into wrist, and stiff joints, especially
28
at shoulder and elbow, and prescribed wrist braces and ibuprofen.
7
1
AR 354-55.
2
indicated that Plaintiff had stiffness at the shoulders and
3
fingers, that wrist splints help with sleep, and that Plaintiff’s
4
right wrist was numb, noting transient paresthesias3 in all
5
fingers.
6
to typing forty words per minute, with a notation that she was
7
under Dr. Langley’s care.
8
9
On November 9, 2006, Dr. Berg examined Plaintiff and
AR 352-53.
On July 9, 2007, Dr. Riley limited Plaintiff
AR 349.
Plaintiff filed an application for disability benefits on
August 12, 2008.
AR 234-37.
On September 2, 2008, Dr. Berg
United States District Court
For the Northern District of California
10
treated Plaintiff at Sonoma County Indian Health for carpal tunnel
11
syndrome, pain in wrists, and right shoulder pain.
12
Plaintiff requested pain medication stronger than Naprosyn and was
13
prescribed Celebrex.
14
AR 344.
AR 344.
On October 28, 2008, Dr. Fieser examined Plaintiff for an
15
orthopedic evaluation.
16
Tinel’s and Phalen’s signs bilaterally and found that flexion and
17
extension of the shoulders, elbows and wrists were all 5/5 and
18
symmetric, as was Plaintiff’s grip strength.
19
noted with respect to home tasks that she could stand at the sink
20
and wash dishes, load the washer and dryer, vacuum, perform light
21
dusting, lift a gallon of milk and lift and carry up to five
22
pounds.
23
bilateral hand and wrist pain with a history of possible carpal
24
tunnel syndrome with no objective evidence on examination.
25
364.
AR 361.
AR 361.
Dr. Fieser reported negative
AR 363.
Dr. Fieser
Dr. Fieser noted Plaintiff’s history of chronic
AR
Dr. Fieser’s functional assessment opined that Plaintiff
26
3
27
28
Paresthesia is defined as a spontaneous abnormal, usually
nonpainful, sensation such as burning or pricking. See Stedman’s
Medical Dictionary, 28th ed. (Lippincott Williams & Wilkins 2006).
8
1
could stand and walk, or sit, in an eight-hour workday without
2
limitations and with normal breaks, had no restrictions on the
3
amount of weight that Plaintiff could lift and carry, and had no
4
postural limitations or specific manipulative limitations.
5
364.
6
AR
On October 16, 2008, Dr. Berg treated Plaintiff, who reported
7
that she had a persistent cough, and prescribed albuterol and
8
doxycycline.
9
abnormal chest x-ray taken by Dr. Munroe showing a five-centimeter
AR 458.
On October 17, 2008, Dr. Coomber noted an
United States District Court
For the Northern District of California
10
lingular mass.
11
Berg who prescribed her additional medications.
12
On November 12, 2008, Dr. Kruusmagi treated Plaintiff for
13
management of pneumonia, which Plaintiff had had for over two
14
months, and tested her for tuberculosis, for which she was
15
negative.
16
AR 462.
On October 21, 2008, Plaintiff saw Dr.
AR 464.
AR 469, 476, 604.
On December 5, 2008, Plaintiff was seen by Dr. Steele who
17
noted that she had been sick due to respiratory infection six
18
times in the last year.
19
of the chest from earlier that month showed a persistent lung
20
abscess and started Plaintiff on a course of Augmentin
21
antibiotics.
AR 474.
Dr. Steele noted that a CT scan
AR 475.
22
On December 30, 2008, in support of her application for
23
disability benefits, Plaintiff stated that her sleep was affected
24
but was not sure which of her many different medications was
25
affecting her sleep.
26
was taking prozac for depression, amoxicillin for her lungs and
27
naprasen for pain, all of which caused upset stomach.
AR 281.
Plaintiff also indicated that she
28
9
AR 292.
1
In her application for disability benefits, Plaintiff stated
2
that, while she was in school, she had attention deficit disorder.
3
AR 285.
4
ADD, Plaintiff indicated that her friend first suggested that she
5
had ADD because she interrupts people.
6
counsel clarified that Plaintiff wasn’t sure if she had an ADD
7
issue or learning disorder and asked the ALJ to order a
8
consultative examination (CE) by a psychologist to evaluate
9
Plaintiff’s learning disorder.
When asked at the March 22, 2010, hearing about having
AR 68.
AR 70-71, 78.
Plaintiff's
The ALJ declined to
United States District Court
For the Northern District of California
10
order a CE, but stated that he would hold the record open for
11
twenty days to allow Plaintiff to submit recent treatment notes or
12
pharmacy notes.
13
AR 78-79.
Plaintiff submitted evidence to the ALJ on March 19, 2010.
14
AR 328-31.
15
which Plaintiff was represented by a non-attorney representative.
16
Plaintiff testified at the hearing, as did her friend, Alex
17
Andrada.
AR 13.
A vocational expert also appeared at the
18
hearing.
AR 10.
The ALJ issued a decision dated May 4, 2010,
19
denying Plaintiff’s application for disability benefits and
20
supplemental security income.
21
The ALJ conducted a hearing on March 22, 2010, at
AR 7.
Plaintiff appealed the ALJ’s denial.
AR 184.
On October 20,
22
2010, Plaintiff submitted new psychological records from her
23
treating psychologist, Dr. Steinberg, and her prison medical
24
records dated June 2, 2003, to March 9, 2005, which the Appeals
25
Council made part of the record.
26
sessions with Plaintiff on July 20, 2010, August 3, 2010, August
27
17, 2010, and September 16, 2010, Dr. Steinberg opined that
28
Plaintiff had major depression, as substantiated by the symptoms
AR 5, 615.
10
Based on treatment
1
of dysphoric mood and loss of interest in almost all usual
2
activities, sleep disturbance, psychomotor agitation, loss of
3
energy and fatigue, feelings of worthlessness, impaired
4
concentration and indecisiveness, and recurring thoughts of death.
5
AR 617-21.
6
On March 31, 2011, the Appeals Council denied Plaintiff’s
7
request for review of the ALJ’s decision.
8
filed this action for judicial review on June 3, 2011.
9
parties’ cross-motions for summary judgment are submitted on the
United States District Court
For the Northern District of California
10
AR 1-3.
Plaintiff
The
papers.
11
After Plaintiff’s reply brief was filed, her attorney
12
notified the Court that Plaintiff passed away on March 3, 2012.
13
Pursuant to the motion for substitution by Yvonne A. Poe,
14
Plaintiff’s daughter and the executor of Plaintiff’s estate, the
15
Court entered an order substituting Ms. Poe for Plaintiff in this
16
action on June 4, 2012.
17
18
LEGAL STANDARD
A court may set aside the Commissioner’s denial of disability
19
benefits only when his findings are based on legal error or are
20
not supported by substantial evidence in the record as a whole.
21
42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th
22
Cir. 1999).
23
Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054-56 (9th Cir.
24
2006) (applying harmless error standard of review in the social
25
security context).
26
a mere scintilla but less than a preponderance.”
27
F.3d at 1098.
The ALJ’s decision is reviewed for harmless error.
Substantial evidence is defined as “more than
Tackett, 180
The court must consider the entire record, weighing
28
11
1
both the evidence that supports and that which contradicts the
2
Commissioner’s conclusion.
Id.
3
Even when a decision is supported by substantial evidence in
4
the record, it “should be set aside if the proper legal standards
5
were not applied in weighing the evidence and making the
6
decision.”
7
(citing Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968)).
8
Under SSA regulations, the Commissioner must apply a five-step
9
sequential process to evaluate a disability benefits claim.4
Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978)
The
United States District Court
For the Northern District of California
10
claimant bears the burden of proof in steps one through four.
11
Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th Cir. 2001).
12
The burden shifts to the Commissioner in step five.
Id. at 954.
13
ALJ'S DECISION
14
At step one of the sequential process, the ALJ found that
15
Plaintiff had not worked since the alleged onset date of May 10,
16
2001.
17
severe impairments of bilateral carpal tunnel syndrome and
AR 12.
At step two, the ALJ found that Plaintiff had
18
19
20
4
The five steps of the inquiry are
1.
21
22
2.
23
3.
24
25
26
4.
27
5.
28
Is the claimant presently working in a substantially gainful
activity? If so, then the claimant is not disabled within
the meaning of the Social Security Act. If not, proceed to
step two. See 20 C.F.R. § 416.920(b).
Is the claimant's impairment severe? If so, proceed to step
three. If not, then the claimant is not disabled. See 20
C.F.R. § 416.920(c).
Does the impairment “meet or equal” one of a list of
specific impairments described in 20 C.F.R. Part 220,
Subpart P, Appendix 1? If so, then the claimant is
disabled. If not, proceed to step four. See 20 C.F.R.
§ 416.920(d).
Is the claimant able to do any work that he or she has done
in the past? If so, then the claimant is not disabled. If
not, proceed to step five. See 20 C.F.R. § 416.920(e).
Is the claimant able to do any other work? If so, then the
claimant is not disabled. If not, then the claimant is
disabled. See 20 C.F.R. § 416.920(f).
12
1
possible pneumonia.
2
Plaintiff's impairments or combination of impairments did not meet
3
or medically equal one of the listed impairments described in the
4
regulations.
AR 12.
At step three, the ALJ found that
AR 12-13.
5
At step four, the ALJ determined Plaintiff’s residual
6
functional capacity (RFC) based on the medical evidence and the
7
intensity, persistence and limiting effects of Plaintiff's
8
symptoms.
9
physical RFC to perform light work with the following
AR at 13.
The ALJ found that Plaintiff had the
United States District Court
For the Northern District of California
10
restrictions: lifting/carrying ten pounds frequently and twenty
11
pounds occasionally, frequently using the upper extremities for
12
fine and gross manipulation, no reaching above shoulder level,
13
occasional stooping, bending, climbing, balancing, crouching,
14
kneeling and crawling, and avoiding work around dust, fumes,
15
odors, gases and pulmonary irritants.
16
Plaintiff’s RFC, the ALJ accepted that Plaintiff had carpal tunnel
17
syndrome discomfort related to her past assembly work and had had
18
little treatment in the past few years.
19
Plaintiff testified at the hearing that her condition became worse
20
and that she needed medication, that she had trouble with elbows,
21
shoulders and neck, that she has not had surgery, that she has
22
arthritis in her knees and ankles, and that she had pneumonia
23
twice in one year.
24
hearing that she does housework, cooking and laundry.
25
50.
26
examiner, Dr. Fieser, that she performed independent activities of
27
daily living, such as showering, bathing, upper and lower
28
extremity dress, toileting, feeding and shopping, and household
AR 13.
AR 14.
In determining
The ALJ noted that
Plaintiff also testified at the
AR 13, 49-
The ALJ noted that Plaintiff had reported to the consultative
13
1
activities such as standing at the sink and washing dishes,
2
loading the washer and dryer, vacuuming, and light dusting.
3
14, 361.
4
intensity, persistence and limiting effects of her symptoms were
5
not credible to the extent that they were inconsistent with the
6
RFC assessment.
AR
The ALJ found that Plaintiff’s statements about the
AR 14.
7
The ALJ also considered opinion evidence and found that
8
Plaintiff had a history of carpal tunnel syndrome as demonstrated
9
by nerve conduction testing.
AR 14.
The ALJ noted that on June
United States District Court
For the Northern District of California
10
11, 2001, shortly after Plaintiff stopped working, Dr. Vidaurri
11
found Plaintiff’s symptoms of carpal tunnel syndrome to be “very
12
atypical.”
13
care with bracing, ice, physical therapy and possible
14
corticosteroid injections.
15
Plaintiff did not attend subsequent therapy in 2002 and that she
16
declined surgery that was planned in January 2003 and scheduled
17
for February 14, 2003.
18
Plaintiff resumed treatment in May 2005 with Dr. Gordon who
19
stated, “Objectively, she has a decrease in grip strength.
20
would consider her normal grip strength to be 50 pounds on the
21
right side and 40 on the left side.”
22
found that Plaintiff “has lost 35 percent of her capacity to do
23
lifting or push/pull activities and 40 percent of her capacity to
24
do repetitive gripping or repetitive manipulative activities using
25
right or left hands.”
26
AR 14, 443.
Dr. Vidaurri recommended conservative
AR 14, 443.
AR 14, 384.
The ALJ noted that
The ALJ further noted that
AR 14, 601.
I
Dr. Gordon also
AR 601.
The ALJ summarized Dr. Gordon’s examination as finding some
27
decrease in grip, but negative results for Tinel’s and Phalen’s
28
and full range of motion of the fingers.
14
AR 14, 597-98, 600-01.
The ALJ noted that Dr. Gordon advised against surgery, citing his
2
conclusion that “she does not have severe ongoing carpal tunnel
3
syndrome necessitating surgery.”
4
Dr. Gordon’s recommendation that Plaintiff be restricted to light
5
exertion, lifting no more than fifteen pounds intermittently and
6
avoiding repetitive gripping.
7
activities that require lifting more than 10 pounds on a
8
repetitive basis or 15 pounds intermittently.
9
repetitive gripping or manipulative activities up to a total of
10
United States District Court
For the Northern District of California
1
approximately three hours interspersed throughout an eight-hour
11
work shift.”).
AR 14, 601.
The ALJ also noted
AR 14, 601 (“Her restrictions are
She can do
12
The ALJ noted that Plaintiff was seen by Dr. Fieser, the
13
consultative examiner, on October 18, 2008, more than three years
14
after being seen by Dr. Gordon.
15
significant tenderness to palpation over Plaintiff’s right wrist,
16
and mild tenderness to palpation over the left carpal tunnel
17
region producing complaints of vague, nonspecific pain.
18
Dr. Fieser found negative Tinel’s signs and Phalen’s signs in both
19
hands.
20
determined that her shoulder flexion and extension, elbow flexion
21
and extension, wrist extension and extension, and grip strength
22
were all 5/5 and symmetric, but did not indicate how motor
23
strength was measured.
24
findings as showing that Plaintiff had grip strength of 5/5,
25
negative Phalen’s and Tinel’s, and an otherwise normal objective
26
examination.
AR 363.
AR 14.
Dr. Fieser found no
AR 363.
Dr. Fieser tested Plaintiff’s motor strength and
AR 363.
The ALJ summarized Dr. Fieser’s
AR 14, 364.
27
The ALJ noted that Dr. Fieser assigned no residual functional
28
capacity limits, and that he had conducted Plaintiff’s most recent
15
1
examination.
2
the earlier assessments of Drs. Gordon and Vidaurri or find that
3
greater manipulative limitations were warranted by the objective
4
findings in the record.
5
lift and carry ten pounds frequently and twenty pounds
6
occasionally, could frequently use the upper extremities for fine
7
and gross manipulation, could not reach above shoulder level, and
8
could occasionally stoop, bend, climb, balance, crouch, kneel and
9
crawl.
AR 14, 364.
AR 14.
The ALJ did not afford great weight to
The ALJ determined that Plaintiff could
Due to Plaintiff’s possible difficulty with
United States District Court
For the Northern District of California
10
breathing after being admitted for pneumonia in October 2008, the
11
ALJ also determined that she should avoid work around dust, fumes,
12
odors, gases and pulmonary irritants.
AR 14.
13
Having considered that Plaintiff had past relevant work as a
14
housekeeper, retail sales clerk and assembler, the ALJ determined
15
that those jobs required a higher level of exertion than allowed
16
by Plaintiff’s RFC and concluded that Plaintiff was unable to
17
perform past relevant work.
AR 15.
18
At the hearing, a vocational expert (VE) testified that an
19
individual with Plaintiff’s age, education, work experience and
20
RFC could perform the requirements of representative occupations
21
such as product assembler and office helper, and that there are
22
6,000 and 2,500 such jobs, respectively, in the Bay Area.
23
91, 97.
24
based on the initial set of limitations presented to her, to
25
determine that Plaintiff was capable of making a successful
26
adjustment to other work that exists in significant numbers in the
27
national economy.
28
limitations presented in hypothetical questions that adopted Dr.
AR 15,
At step five, the ALJ relied on the testimony of the VE,
AR 15-16.
The ALJ rejected additional
16
1
Gordon’s more restrictive May 11, 2005, opinion or that assumed
2
that Plaintiff required frequent breaks.
3
the ALJ found that Plaintiff was not disabled under the Act.
4
16.
5
6
7
AR 16.
On this basis,
AR
DISCUSSION
I.
The ALJ’s Decision Is Supported by Substantial Evidence
Plaintiff contends that the ALJ failed to call a medical
8
expert or make findings of limitations on Plaintiff’s ability to
9
manipulate her hands or on her grip strength to support his
United States District Court
For the Northern District of California
10
residual functional capacity determination.
11
The ALJ relied on Dr. Fieser’s consultative examination, which was
12
the most recent, in which he observed 5/5 grip strength,
13
suggesting that Plaintiff had no decreased grip strength although
14
Dr. Fieser did not indicate how the grip strength was measured.
15
Dr. Fieser also observed negative Phalen’s and Tinel’s, with an
16
otherwise normal objective examination, and assigned no residual
17
functional capacity limits.
18
findings that he did not afford “great weight to the earlier
19
assessments of Drs. Gordon and Vidaurri,” which had been made in
20
2005 and 2001, respectively.
21
AR 14.
Pl.’s Mot. at 11.
The ALJ further states in his
Plaintiff contends that the ALJ improperly rejected the
22
opinions of her treating physicians, Drs. Gordon, Satow and
23
Vidaurri, who documented Plaintiff’s symptoms of carpal tunnel
24
syndrome.
25
physician's opinion because “he is employed to cure and has a
26
greater opportunity to know and observe the patient as an
27
individual.”
28
1989); Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).
Generally, greater weight is given to a treating
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
17
1
Although the treating physician’s opinion is not necessarily
2
conclusive as to either a physical condition or the ultimate issue
3
of disability, an ALJ must provide “specific and legitimate
4
reasons for rejecting the opinion of the treating physician.”
5
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).
6
meet this burden by setting out a detailed and thorough summary of
7
the facts and conflicting clinical evidence, stating an
8
interpretation thereof, and making findings.
9
at 751.
United States District Court
For the Northern District of California
10
The ALJ can
Magallanes, 881 F.2d
Here, the ALJ accepted the diagnosis of carpal tunnel
11
syndrome discomfort.
12
Plaintiff’s limited treatment, as evidenced in her medical
13
records, and the more recent objective findings of the
14
consultative examiner did not warrant the greater manipulative
15
limitations on repetitive gripping recommended by Dr. Gordon or
16
Dr. Vidaurri several years earlier.
17
Gordon’s assessment, dated May 11, 2005, restricted Plaintiff from
18
activities that required lifting more than ten pounds on a
19
repetitive basis or fifteen pounds intermittently and allowed
20
repetitive gripping or manipulative activities for no more than
21
half an hour at a time, up to three hours interspersed throughout
22
an eight-hour work shift.
23
more recent examination of Plaintiff revealed a 5/5 grip strength,
24
although Dr. Fieser did not appear to use the same dynamometer
25
test that Dr. Gordon used three years earlier, and negative
26
Phalen’s and Tinel’s, which were consistent with Dr. Gordon’s
27
negative Phalen’s and Tinel’s test results in May 2005.
28
examining Plaintiff in October 2008, Dr. Fieser noted Plaintiff’s
AR 14.
However, the ALJ determined that
AR 601.
18
AR 14.
In particular, Dr.
As the ALJ noted, Dr. Fieser’s
When
1
history of chronic bilateral hand and wrist pain with a history of
2
possible carpal tunnel syndrome, but found “no objective evidence
3
on examination today.”
4
accepted the opinion of the consultative examiner that Plaintiff
5
did not require manipulative limitations on her residual
6
functional capacity.
7
AR 364.
Based on this evidence, the ALJ
The ALJ further found that Plaintiff’s subjective statements
8
about the intensity, persistence and limiting effects of the
9
symptoms of her medically determinable impairments were not fully
United States District Court
For the Northern District of California
10
credible.
11
subjective symptom testimony, an ALJ must perform two stages of
12
analysis: the Cotton analysis and an analysis of the credibility
13
of the claimant's testimony regarding the severity of her
14
symptoms.”
15
(citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
16
Cotton test is a threshold test which requires a claimant who
17
alleges disability based on subjective symptoms to produce
18
objective medical evidence of an underlying impairment which could
19
reasonably be expected to produce the pain or other symptoms
20
alleged.
21
underlying impairment, the ALJ may only reject the claimant’s
22
testimony if there is evidence that the claimant is malingering or
23
by offering specific, clear and convincing reasons for doing so.
24
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Soc. Sec.
25
Ruling 96-7p (July 2, 1996).
26
credibility regarding the severity of his or her symptoms, the ALJ
27
may consider “(1) ordinary techniques of credibility evaluation,
28
such as the claimant's reputation for lying, prior inconsistent
AR 12.
“In deciding whether to accept a claimant's
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)
Id.
The
Once the claimant produces medical evidence of an
To determine a claimant's
19
1
statements concerning the symptoms, and other testimony by the
2
claimant that appears less than candid; (2) unexplained or
3
inadequately explained failure to seek treatment or to follow a
4
prescribed course of treatment; and (3) the claimant's daily
5
activities.”
6
Smolen, 80 F.3d at 1284.
Plaintiff contends that the ALJ failed to provide clear and
7
convincing reasons to reject her testimony, Mot. at 14-15, but the
8
ALJ’s decision articulated several reasons for discrediting her
9
subjective testimony.
Here, the ALJ noted that Plaintiff had
United States District Court
For the Northern District of California
10
little treatment for her carpal tunnel syndrome in the past few
11
years and had gaps in her recent treatment by her regular
12
physician.
13
tunnel surgery, and her medical record shows conservative
14
treatment, such as wrist splints worn at night and use of non-
15
steroidal anti-inflammatory drugs, naprosen and Celebrex.
16
facts undermine her claims of disabling pain.
17
Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (favorable response
18
to conservative treatment including physical therapy and the use
19
of anti-inflammatory medication undermines reports of disabling
20
pain).
21
AR 14.
The ALJ noted that Plaintiff never had carpal
These
See Tommasetti v.
The ALJ may also consider daily living activities in the
22
credibility analysis.
23
that Plaintiff could take care of her own personal daily living
24
needs, cook, clean, do laundry, shop, and take care of her
25
grandson.
26
dated December 30, 2008, that she was the sole caregiver for her
27
mentally disabled son, making sure he is clothed and fed.
28
The ALJ also noted other activities, such as working part-time in
AR 13-14.
Burch, 400 F.3d at 680-81.
The ALJ found
Plaintiff also stated in her function report
20
AR 281.
1
2007 and 2008 and obtaining a degree from Empire College in 2007,
2
though admittedly with help from her daughter.
3
74, 254.
4
with Plaintiff’s claims that she could not perform any work
5
activity.
6
AR 14, 53-59, 72-
The ALJ found that these activities were inconsistent
AR 14.
The ALJ further noted a physician’s reference to “secondary
7
gains” and “disability seeking,” in the record dated April 24,
8
2008, after Plaintiff was seen for carpal tunnel syndrome and
9
reported seeing spots before her eyes, suggesting a tendency to
United States District Court
For the Northern District of California
10
exaggerate.
11
these records to support a finding of malingering, the ALJ
12
articulated clear and convincing reasons for discrediting
13
Plaintiff’s testimony.
14
(9th Cir. 2001) (tendency to exaggerate undermines credibility).
15
AR 14, 346-47.
Although the ALJ did not rely on
Tonapetyan v. Halter, 242 F.3d 1144, 1148
Based on the clear and convincing reasons set forth by the
16
ALJ, supported by substantial evidence in the record, for
17
partially rejecting Plaintiff’s testimony, the ALJ properly
18
concluded that Plaintiff's testimony regarding her symptoms was
19
not credible to the extent it was inconsistent with the residual
20
functional capacity that the ALJ found.
21
II.
22
Plaintiff Did Not Provide Sufficient Evidence of Medically
Determinable Mental Impairment
A.
The ALJ Satisfied His Duty to Develop the Record
23
Plaintiff contends that the ALJ failed to develop a record
24
and sufficiently evaluate her mental impairments.
In social
25
security cases, an ALJ has the duty to develop the record fully
26
and fairly and to ensure that the claimant's interests are
27
considered, even when the claimant is represented by counsel.
28
21
1
Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001).
2
methods an ALJ has to develop the record is to order a CE at the
3
SSA’s expense.
4
2001).
5
claimant and the ALJ’s duty to develop the record is triggered
6
only when there is ambiguous evidence or when the record is
7
inadequate to allow for proper evaluation.
8
459.
9
subpoenaing the claimant’s physicians, submitting questions to the
One of the
Reed v. Massanari, 270 F.3d 838, 841 (9th Cir.
However, the burden of proving disability lies with the
Mayes, 276 F.3d at
The ALJ may discharge this duty in several ways including:
United States District Court
For the Northern District of California
10
claimant’s physicians, continuing the hearing or keeping the
11
record open after the hearing to allow supplementation of the
12
record.
13
599, 602 (9th Cir. 1998) (ALJ’s indication to plaintiff and her
14
counsel that he would keep the record open so that they could
15
supplement her doctor's report satisfied ALJ’s duty to develop the
16
record).
Tonapetyan, 242 F.3d at 1150; Tidwell v. Apfel, 161 F.3d
17
At the hearing before the ALJ, Plaintiff raised the
18
possibility of ADD, a learning disorder, or other underlying
19
mental impairment.
20
reported depression at one time, citing her medical records, and
21
Plaintiff testified to being prescribed medication for her
22
depression.
23
seen a therapist about her depression, Plaintiff responded that
24
she had wanted to, but hadn’t done so yet.
25
hearing, the ALJ told Plaintiff’s representative that he would
26
keep the record open for at least twenty days so that Plaintiff
27
could submit additional evidence.
28
Plaintiff had the opportunity to submit additional evidence of her
AR 71.
The ALJ noted that Plaintiff had
AR 71-72, 343-359.
When asked whether she had ever
22
AR 71.
At the
See AR 78-79, 99.
Thus,
1
mental impairment to the ALJ, but chose not to do so.
2
that the ALJ kept the record open after the hearing for Plaintiff
3
to submit additional evidence is sufficient to satisfy any duty to
4
develop the record.
5
The fact
Plaintiff submitted additional evidence of her mental health
6
to the Appeals Council, including progress notes by a treating
7
psychologist from July 20, 2010 to September 16, 2010, which were
8
included in the administrative record.
9
considered the additional evidence and determined that it did not
The Appeals Council
United States District Court
For the Northern District of California
10
provide a basis for changing the ALJ’s decision.
11
discussed in section II.C, below, the new evidence submitted to
12
the Appeals Council did not show that any functional limitations
13
were caused by Plaintiff’s mental impairment.
14
15
AR 1-2.
As
B.
Plaintiff Did Not Present a Colorable Claim of Mental
Impairment to the ALJ
Plaintiff contends that the ALJ failed to follow the
16
procedures for evaluating the severity of mental impairments
17
required by 20 C.F.R. § 404.1520a.
When evaluating psychiatric
18
impairments, the ALJ must follow a “special psychiatric review
19
technique” and document the findings and conclusions in the
20
decision.
Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012).
21
As the Ninth Circuit has recently articulated,
22
23
24
25
26
27
28
In step two of the disability determination, an ALJ
must determine whether the claimant has a medically
severe impairment or combination of impairments. In
making this determination, an ALJ is bound by 20
C.F.R. § 404.1520a. That regulation requires those
reviewing an application for disability to follow a
special psychiatric review technique. 20 C.F.R.
§ 404.1520a. Specifically, the reviewer must
determine whether an applicant has a medically
determinable mental impairment, id. § 404.1520a(b),
rate the degree of functional limitation for four
functional areas, id. § 404.1520a(c), determine the
23
severity of the mental impairment (in part based on
the degree of functional limitation), id.
§ 404.1520a(c)(1), and then, if the impairment is
severe, proceed to step three of the disability
analysis to determine if the impairment meets or
equals a specific listed mental disorder, id.
§ 404.1520a(c)(2).
1
2
3
4
At the first two levels of review, this technique is
documented in a Psychiatric Review Technique Form
(“PRTF”). Id. § 404.1520a(e).
5
6
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir.
7
2011).
The court noted that although the regulation had been
8
amended so that it no longer requires the PRTF to be attached to
9
the decision, “the Social Security Regulations require the ALJ to
10
United States District Court
For the Northern District of California
complete a PRTF and append it to the decision, or to incorporate
11
its mode of analysis into the ALJ's findings and conclusions.”
12
Id. at 725-26 (citing Gutierrez v. Apfel, 199 F.3d 1048, 1050 (9th
13
Cir. 2000), superseded by regulation as stated in Blackmon v.
14
Astrue, 719 F. Supp. 2d 80, 92 (D.D.C. 2010)).
The court in
15
Keyser held, “An ALJ's failure to comply with 20 C.F.R.
16
§ 404.1520a is not harmless if the claimant has a ‘colorable claim
17
of mental impairment.’”
Id. at 726 (quoting Gutierrez, 199 F.3d
18
at 1051).
19
A colorable claim is one that is not “wholly insubstantial,
20
immaterial, or frivolous.”
Udd v. Massanari, 245 F.3d 1096, 1099
21
(9th Cir. 2001) (quoting Boettcher v. Sec’y Health & Human Serv.,
22
759 F.2d 719, 722 (9th Cir. 1985)).
The special technique under
23
§ 404.1520a requires an evaluation of the claimant’s “pertinent
24
symptoms, signs, and laboratory findings to determine whether you
25
have a medically determinable mental impairment(s).”
20 C.F.R.
26
§ 404.1520a(b).
A medically determinable impairment “must result
27
from anatomical, physiological, or psychological abnormalities
28
24
1
which can be shown by medically acceptable clinical and laboratory
2
diagnostic techniques.”
3
§ 416.908; 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
4
before the ALJ, Plaintiff presented only one report of depression
5
or dysthymia and a prescription for prozac over a ten-year period,
6
with no records of psychotherapy or treatment by a psychologist.
7
AR 356.
8
Stephen Fair determined that Plaintiff’s medical records were
9
insufficient to find a medically determinable impairment during
20 C.F.R. § 404.1508; 20 C.F.R.
On the record
In his psychiatric review, state agency psychologist
United States District Court
For the Northern District of California
10
the assessment period of May 10, 2001 to September 30, 2007.
11
480.
12
after the hearing, Plaintiff did not present the ALJ with clinical
13
or diagnostic reports to show a colorable claim of mental
14
impairment caused by depression.
15
1605420 (C.D. Cal.) (ALJ was not required to follow special
16
procedure where claimant failed to make colorable claim of mental
17
impairment to the ALJ and presented scant evidence for the first
18
time to the Appeals Council); Bowman v. Astrue, 2011 WL 3323383
19
(C.D. Cal.) (affirming denial of benefits where the ALJ did not
20
receive any medical evidence of a medically determinable mental
21
impairment).
22
AR
Though offered the opportunity to supplement her records
See Miles v. Astrue, 2012 WL
Similarly, Plaintiff’s self-report of ADD or other possible
23
learning disability, without any supporting medical evidence, does
24
not present a colorable claim of mental impairment.
25
circumstances may the existence of an impairment be established on
26
the basis of symptoms alone.’”
27
1005 (9th Cir. 2005) (citation omitted).
28
(“A physical or mental impairment must be established by medical
“‘[U]nder no
Ukolov v. Barnhart, 420 F.3d 1002,
25
See 20 C.F.R. § 404.1508
1
evidence consisting of signs, symptoms, and laboratory findings,
2
not only by your statement of symptoms.”).
3
therefore, required to follow the special technique for evaluating
4
the severity of mental impairments.
5
The ALJ was not,
7
Plaintiff contends that the new evidence provided by her
8
treating psychologist, Dr. Steinberg, and submitted to the Appeals
9
Council, substantiates her claim of mental impairment so as to
10
United States District Court
For the Northern District of California
6
C.
The Additional Evidence Submitted to the Appeals Council
Does Not Reflect Any Functional Limitations Caused by Mental
Impairment
trigger the special technique of evaluating mental impairments.
11
The Appeals Council is not required to make any particular
12
evidentiary finding in rejecting new evidence submitted after an
13
adverse administrative decision.
14
Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) (citing Gomez v.
15
Chater, 74 F.3d 967, 972 (9th Cir. 1996)).
16
considers the new evidence submitted to the Appeals Council in
17
light of the record as a whole to determine whether the ALJ’s
18
decision was supported by substantial evidence and was free of
19
legal error.
20
(9th Cir. 1993)).
21
F.3d 1157, 1162 (9th Cir. 2012) (the administrative record
22
includes evidence submitted to and considered by the Appeals
23
Council).
24
did not show that her depression precluded her from performing
25
suitable work or was so severe as to be disabling.
26
Taylor v. Comm’r Soc. Sec.
The Court, however,
Id. (citing Ramirez v. Shalala, 8 F.3d 1449, 1452
See also Brewes v. Comm’r Soc. Sec. Admin., 682
Here, the additional evidence presented by Plaintiff
Dr. Steinberg treated Plaintiff from July 2010 to September
27
2010 and opined that she met the diagnostic criteria for major
28
depression pursuant to DSM-IV.
AR 617.
26
Dr. Steinberg also stated
that Plaintiff’s history indicated that her recurrent depression
2
began at age twelve at the time of her father’s death,5 and that
3
her depression was severely exacerbated a few years ago when the
4
man with whom she was in a long-term primary relationship was
5
deported to Mexico and not allowed to return to the United States
6
for ten years.
7
diagnostic interview substantiated the following symptoms that met
8
the criteria for major depression: “disphoric [sic] mood and loss
9
of interest in almost all usual activities, sleep disturbance,
10
United States District Court
For the Northern District of California
1
psychomotor agitation, loss of energy and fatigue, feelings of
11
worthlessness, impaired concentration and indecisiveness, and
12
recurring thoughts of death.”
AR 617.
Dr. Steinberg opined that Plaintiff’s
AR 617.
13
Dr. Steinberg’s evaluation is vague as to the severity of
14
Plaintiff’s depression during the relevant time period, noting
15
only that her depression was “severely exacerbated a few years
16
ago,” with notes indicating that Plaintiff had been sad and
17
hopeless for the past four years since her partner was deported.
18
AR 617-18.
19
Plaintiff’s depression covered the relevant time period of May 10,
20
2001 to September 30, 2007, his assessment did not opine, and
21
Plaintiff does not contend, that her depression satisfied the
22
required level of severity for mental disorders set forth in the
23
listing of impairments to presume conclusively that she was
24
disabled.
Even assuming that Dr. Steinberg’s opinion that
See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.
25
26
27
28
5
Elsewhere in his notes, Dr. Steinberg indicates that
Plaintiff was age fifteen when her father died, AR 621, which is
consistent with Plaintiff’s testimony that she was in tenth grade
at the time of his death, AR 69-70.
27
1
1993) (“The required level of severity for diagnosis 12.04 is met
2
when the claimant’s impairment meets at least one paragraph A
3
criterion and at least two paragraph B criteria.”); 20 C.F.R.
4
§ 404, Subpt. P, Appx. 1.6
5
6
7
8
9
6
In particular, Dr. Steinberg did not conclude that
Plaintiff had any two of the requisite symptoms listed in
paragraph B. The A and B criteria for affective disorders such as
depression are defined as follows:
A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of
the following:
United States District Court
For the Northern District of California
10
11
a. Anhedonia or pervasive loss of interest in
almost all activities; or
12
13
b. Appetite disturbance with change in weight; or
14
c. Sleep disturbance; or
15
d. Psychomotor agitation or retardation; or
16
e. Decreased energy; or
17
f. Feelings of guilt or worthlessness; or
18
g. Difficulty concentrating or thinking; or
19
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking;
20
or
21
2. Manic syndrome characterized by at least three of the
[listed symptoms]; or
22
23
3. Bipolar syndrome with a history of episodic periods
manifested by the full symptomatic picture of both manic
and depressive syndromes (and currently characterized by
either or both syndromes);
24
25
26
AND
27
B. Resulting in at least two of the following:
28
1. Marked restriction of activities of daily living; or
28
1
Nor did Dr. Steinberg attribute any functional limitation to
2
Plaintiff’s depression.
3
Plaintiff exhibited “loss of interest in almost all usual
4
activities,” AR 617, he did not opine that she was unable or
5
limited in her ability to perform daily living activities, and her
6
testimony at the hearing indicated that she did actually perform
7
daily activities independently, AR 14, 361.
8
erred in failing to evaluate Plaintiff’s claim of mental
9
impairment under the special technique, any such error was
Although Dr. Steinberg noted that
Thus, even if the ALJ
United States District Court
For the Northern District of California
10
harmless because Plaintiff failed to show that her depression
11
resulted in functional loss in the four areas of function set out
12
in the special technique: (a) activities of daily living;
13
(b) social functioning; (c) concentration, persistence, or pace;
14
and (d) episodes of decompensation.
15
20 C.F.R. § 416.920a(c)(3).
16
(C.D. Cal.) (remanding for supplemental evaluation of mental
Chaudry, 688 F.3d at 666-67;
Cf. Gatson v. Astrue, 2011 WL 3818494
17
18
19
20
21
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration;
22
23
24
25
26
27
If the paragraph B criteria are not satisfied, the paragraph
C criteria allows for a claimant to meet the listing for affective
disorders if there is “[m]edically documented history of a chronic
affective disorder of at least 2 years' duration that has caused
more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the [listed
factors].”
28
29
1
impairment evidence where the claimant presented extensive mental
2
health treatment records predating the ALJ’s decision and
3
documenting “moderate limitations to understand and remember
4
detailed instructions” and “marked limitations in social
5
interactions”).
6
The ALJ’s determination that Plaintiff was not disabled under
7
the Act is supported by substantial evidence in the record.
8
Allen v. Sec. Health & Human Serv., 726 F.2d 1470, 1473 (9th Cir.
9
1984) (psychiatric evidence “shows primarily that a disorder
See
United States District Court
For the Northern District of California
10
exists [but] does not show that it was of disabling severity”).
11
Even after having the opportunity to supplement her medical
12
records, Plaintiff did not demonstrate that she had a medically
13
determinable mental impairment that prevented her from engaging in
14
substantial gainful employment.
15
721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).
16
III. Remand Is Not Warranted
Reddick v. Chater, 157 F.3d 715,
17
Plaintiff seeks remand of her application for disability
18
benefits to the ALJ for consideration of new evidence or for award
19
of benefits without rehearing.
20
fails to demonstrate either basis for remand.
21
Pl.’s Mot. at 1-2.
Plaintiff
When seeking remand for consideration of new evidence
22
submitted after the Commissioner’s final decision has been made, a
23
plaintiff “must show that there is: (1) new evidence that is
24
material, and (2) good cause for his failure to incorporate that
25
evidence into the administrative record.”
26
& Human Serv., 812 F.2d 509, 511 (9th Cir. 1987) (citing Allen,
27
726 F.2d at 1473 and 42 U.S.C. § 405(g)).
28
meet the good cause requirement by merely obtaining a more
30
Sanchez v. Sec. Health
“A claimant does not
1
favorable report once his or her claim has been denied.”
2
Massanari, 276 F.3d 453, 463 (9th Cir. 2001).
3
after issuance of the Commissioner’s final decision “would be
4
material to a new application, but not probative of [the
5
plaintiff's] condition at the hearing.”
6
Mayes v.
New reports made
Sanchez, 812 F.2d at 512.
Plaintiff has submitted new medical records of treatment for
7
her pneumonia and/or a lung impairment dated between August 17,
8
2011 and October 19, 2011.
Pl.’s Notice of New and Material
9
Evidence (Docket No. 14).
These records are not material to
United States District Court
For the Northern District of California
10
Plaintiff’s condition as it existed at the time of the hearing and
11
do not satisfy the applicable standard for remand for
12
consideration of new evidence.
13
Furthermore, Plaintiff has not demonstrated that the record
14
supports an award of benefits.
15
may direct an award of benefits where the record has been fully
16
developed and where further administrative proceedings would serve
17
no useful purpose.’”) (quoting Smolen, 80 F.3d at 1292).
18
Plaintiff’s motion for remand is therefore denied.
19
Sanchez, 812 F.2d at 512.
Cf. Brewes, 682 F.3d at 1164 (“‘We
CONCLUSION
20
Based on the foregoing, Defendant’s cross-motion for summary
21
judgment is granted and Plaintiff’s motion for summary judgment or
22
\\
23
\\
24
\\
25
26
27
28
31
1
for remand is denied.
2
parties shall bear their own costs.
Judgment shall enter accordingly.
The
3
4
IT IS SO ORDERED.
5
6
7
Dated: 9/26/2012
CLAUDIA WILKEN
United States District Judge
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?